United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
Local Union 513 Pension Fund (“Pension Fund”) and
one of its Trustees, filed this action seeking to collect a
withdrawal liability assessment under the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §1001, et
seq. (“ERISA”), as amended by the
Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C.
§1381, et seq. (“MPPAA”).
Defendants are Susie’s Construction, Inc.
(“Susie’s”), an administratively dissolved
Missouri corporation, and its former officers, Susie York and
Bud (Myson) York (collectively “Defendants”).
Plaintiffs move for summary judgment. (Doc. No. 11) The
motion is fully briefed and ready for disposition.
Pension Fund is an employee benefit plan within the meaning
of Sections 3(1) and (3) and (37), 502 and 515 of ERISA, 29
U.S.C. §§1002(1), (3), (37), 1132 and 1145; Patrick
P. Kammer is the duly designated and acting Trustee of the
Pension Fund. (Complaint, Doc. No. 1 at ¶ 1)
Susie’s was administratively dissolved by the Missouri
Secretary of State in 1998. (Plaintiffs’ Statement of
Undisputed Facts (“SOF”), Doc. No. 12 at
¶¶ 14-15) At the time Susie’s was
administratively dissolved, its President was Susie York and
its Vice President was Bud York. (Id. at
undisputed that Susie’s was party to a series of
collective bargaining agreements with the International Union
of Operating Engineers, Local Union 513 (“the
Union”), covering the period May 1, 1995 through April
31, 2014. (SOF at ¶ 2) These collective bargaining
agreements required Susie’s to, inter alia,
make contributions to the Pension Fund on the basis of all
hours worked by covered employees. (SOF at ¶ 3)
Susie’s withdrew from the Pension Fund as of March 31,
2009. (SOF at ¶ 4) Plaintiffs have calculated the
withdrawal liability assessable to Susie’s based upon a
complete withdrawal from the Pension Fund as of March 31,
2009, at $20, 861.00. (SOF at ¶¶ 8-9)
December 1, 2014, Plaintiffs sent a letter to Defendants,
received by Susie York on December 4, 2014, notifying them
that Defendants (and all trades or business under common
control with Defendants) were subject to withdrawal liability
in the total amount of $20, 861.00 determined on November 17,
2014. The letter provided an amortization schedule comprised
of three (3) quarterly payments of $6, 948.15, and one final
payment of $16.54. The first monthly payment was due January
1, 2015. (SOF at ¶¶ 8-9)
did not respond to the December 1, 2014 letter. (SOF at
¶ 10) Defendants failed to request the Pension Fund
review its assessment within ninety (90) days of receiving
notice of withdrawal liability, which ended on March 4, 2015.
(SOF at ¶ 12) Defendants also failed to demand
arbitration of the withdrawal liability assessment.
(Id.) At no point has Susie’s paid any of the
assessed withdrawal liability, either in a lump sum or
quarterly payments. (SOF at ¶¶ 11, 13) On June 12,
2015, Plaintiffs gave written notice to Defendants that it
had failed to make the scheduled withdrawal liability
payments. (SOF at ¶ 18) Plaintiffs filed this action on
August 26, 2015 to collect unpaid interim withdrawal
liability payments and enjoin violations of ERISA and an
employee benefit plan.
judgment is appropriate when no genuine issue of material
fact exists in the case and the movant is entitled to
judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The initial burden
is placed on the moving party. City of Mt. Pleasant, Iowa
v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th
Cir. 1988). If the record demonstrates that no genuine issue
of fact is in dispute, the burden then shifts to the
non-moving party, who must set forth affirmative evidence and
specific facts showing a genuine dispute on that issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In determining whether summary judgment is
appropriate in a particular case, the evidence must be viewed
in the light most favorable to the nonmoving party.
Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616,
619 (8th Cir. 1988). Self-serving, conclusory statements
without support are not sufficient to defeat summary
judgment. Armour and Co., Inc. v. Inver Grove
Heights, 2 F.3d 276, 279 (8th Cir. 1993).
ERISA and MPPAA - Statutory scheme
was enacted in 1974 to ensure that employees who were
promised pension benefits would receive those benefits on
retirement. PACE Indus. Union-Mgmt. Pension Fund v. Troy
Rubber Engraving Co., 805 F.Supp.2d 451, 456-57 (M.D.
Tenn. 2011) (citing Mason & Dixon Tank Lines, Inc. v.
Cent. States, Se. & Sw. Areas Pension Fund, 852 F.2d
156, 158 (6th Cir. 1988). ERISA was amended in 1980 by the
MPPAA, which responded to the problem of employers
withdrawing from multiemployer pension plans when diminishing
overall participation forced remaining employers to
contribute at a higher level in order to meet the
funds’ past liabilities. Id. To address this
problem, “[t]he MPPAA requires employers who withdraw,
completely or partially, from a multiemployer pension plan to
contribute to the plan a proportionate share of the unfunded,
vested benefits.” Id.
to this case, “complete withdrawal” is
“when an employer (1) permanently ceases to have an
obligation to contribute under the plan, or (2) permanently
ceases all covered operations under the plan.” 29
U.S.C. § 1383(a). The amount of an employer’s
withdrawal liability is determined by a plan’s
trustees, who must show the employer was obligated to
contribute to the plan under a collective bargaining
agreement and that the employer has withdrawn from the plan.
29 U.S.C. §§ 1382, 1392(a). The amount of the
withdrawal liability is determined according to a formula
provided in 29 U.S.C. §§ 1381(b) and 1391. Once the
employer’s withdrawal liability is determined, the plan
sponsor must, “as soon as practicable, ” notify
the employer of the amount of liability and make a demand for
payment. 29 U.S.C. §§ 1382, 1399(b)(1).
receiving notice of withdrawal liability, the employer has
ninety days to (i) request that the plan sponsor review
“any specific matter” regarding the liability and
payment schedule determination, (ii) “identify any
inaccuracy in the determination of the amount of the unfunded
vested benefits allocable to the employer, ” and (iii)
provide the plan sponsor additional information. §
1399(b)(2)(A). If there is “any dispute …
concerning a determination made under sections 1381 through
1399 of this title, ” either party may initiate
arbitration “within a 60-day period after the earlier
of (A) the date of notification [of the plan sponsor’s
response to the request for review] …, or (B) 120 days